Little v. City of Anniston
| Decision Date | 22 December 2016 |
| Docket Number | Case No.: 1:15-CV-954-VEH |
| Parties | BEN LITTLE, Plaintiff, v. CITY OF ANNISTON, GENE D. ROBINSON, and HERBERT N. PALMORE, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This civil action was originally filed on May 5, 2015, in the Circuit Court of Calhoun County by the Plaintiff, Ben Little, against the following Defendants: the City of Anniston, Alabama ("the City"); Gene D. Robinson, in his official capacity as the mayor of Anniston, Alabama; and Herbert N. Palmore, in his official capacity as a member of the City Council of Anniston, Alabama.1 The Complaint sets out claims for "racial discrimination" under 42 U.S.C. §§ 1983 and 1988 (Count One),and "breach of implied contract" under Alabama law (Count Two). Both counts arise out of two lawsuits filed against the Plaintiff while he was a member of the Anniston City Council and the City's failure to pay the Plaintiff's attorney's fees incurred in defending those proceedings.
The case comes before the Court on the Defendants' motion for summary judgment (doc. 16), and motion to strike certain evidence proffered by the Plaintiff in opposition to the motion (doc. 19). For the reasons stated herein, the motion to strike will be GRANTED, and the motion for summary judgment will be GRANTED.
In the motion to strike the Defendants write:
(Doc. 19 at 3-4). The Plaintiff does not dispute that these documents have always been under his care, custody, or control. Accordingly, since these documents are being used by the Plaintiff to support his claims, they fall under Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, which requires the Plaintiff to produce:
a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]
Fed. R. Civ. P. 26(a)(1)(A)(ii) (underlining added). It is undisputed that the Plaintiff failed to produce or even to identify the requested documents as required by Rule 26(a)2, and never filed a supplemental response identifying or producing those documents.
It is also undisputed that the above referenced documents were within the scope of materials sought by the Defendants in their requests for production.3 The Plaintiffdoes not dispute that he did not respond to those requests by producing or identifying the documents.4 It is also undisputed that the documents were not produced or identified as a result of any supplemental production by the Plaintiff.
Rule 37(c)(1) of the Federal Rules of Civil Procedure provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or isharmless." Fed. R. Civ. P. 37(c)(1) (emphasis added).5 "The burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party." Mitchell v. Ford Motor Co., 318 F. App'x 821, 824 (11th Cir. 2009) (emphasis added, internal citations omitted).6
Although a number of courts have articulated a standard for determining whether a failure to disclose was "substantially justified," the Eleventh Circuit has not. However, many district courts within this circuit have adopted the approach that a failure to disclose is "substantially justified" when there is a "justification to a degree that could satisfy a reasonable person that parties could differ as to whetherthe party was required to comply with the disclosure request." See, e.g., Longhini v. W. 97 Corp., No. 1:15-CV-22874-UU, 2016 WL 3671870, at *4 (S.D. Fla. July 11, 2016) (Ungaro, J.); REX D. HILL, Plaintiff, v. ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant., No. 614CV950ORL41KRS, 2016 WL 7228748, at *4 (M.D. Fla. Jan. 20, 2016) (Mendoza, J.); Graf v. Morgan, No. CIV.A. 11-0064-CG-N, 2012 WL 869004, at *3 (S.D. Ala. Mar. 13, 2012) (Granade, J.); Great N. Ins. Co. v. Ruiz, No. CV 408-194, 2011 WL 321782, at *4 (S.D. Ga. Jan. 28, 2011) (Hall, J.); Smith v. Jacobs Eng'g Grp., Inc., No. 4:06CV496-WS, 2008 WL 4194521, at *12 (N.D. Fla. Sept. 8, 2008) (Stafford, J.); Herndon v. Tippets, No. CIV.A. 04-PWG-1026-E, 2005 WL 6736112, at *3 (N.D. Ala. Aug. 16, 2005) (Greene, M.J.); Bosch v. Title Max, Inc., No. CIV A 03-AR-0463-S, 2004 WL 5238128, at *4 (N.D. Ala. Aug. 25, 2004) (Acker, J.); Chapple v. Alabama, 174 F.R.D. 698, 701 (M.D.Ala.1997) (Carroll, M.J.). The Eleventh Circuit has articulated this same approach with regards to sanctions under Rule 37(a) and (b). See, Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993) (citing and quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988)) ("The Supreme Court has clarified that an individual's discovery conduct should be found 'substantially justified' under Rule 37 if it is a response to a 'genuine dispute, or if reasonable people could differ as to the appropriateness of the contestedaction.'"). In light of the Devaney opinion, and the district court decisions which have already adopted this approach, the Court is persuaded to follow suit.
The Eleventh Circuit has also not explained what "harmless" means in the context of Rule 27(c)(1). Again, though, the recent trend among district courts in this circuit is to hold that failure to comply with the mandate of the rule is harmless "when there is no prejudice to the party entitled to the disclosure." Coleman v. Home Depot U.S.A., Inc., No. 1:15-CV-21555-UU, 2016 WL 4543120, at *1 (S.D. Fla. Mar. 21, 2016) (Ungaro, J.); see also, Lee-Bolton v. Koppers Inc., No. 1:10-CV-253-MCR-GRJ, 2015 WL 11110547, at *3 (N.D. Fla. July 28, 2015) (Jones, J.); Witt v. Franklin Cty. Bd. of Educ., No. CV-11-S-1031-NW, 2013 WL 832152, at *1 (N.D. Ala. Feb. 28, 2013) (Smith, J.); Ripps v. Powers, No. CIV.A. 07-0832-CG-B, 2010 WL 3339514, at *1 (S.D. Ala. Aug. 24, 2010) (Granade, J.); Ellison v. Windt, No. 6:99-CV-1268-ORLKRS, 2001 WL 118617, at *2 (M.D. Fla. Jan. 24, 2001) (Spaulding, M.J.); Chapple, 174 F.R.D. at 701. The Court is persuaded that this approach is also proper. The Plaintiff fails to set out or argue any of the above standards, and therefore fails to satisfy his burden. For that reason alone, the motion to strike is due to be granted. Further, as shown below, the arguments which are made fail to show how his failure was substantially justified or harmless.
First, the Plaintiff makes no argument whatsoever as to exhibits N and R. Themotion to strike will be granted as to those two exhibits. As to the remaining exhibits, he argues:
Plaintiff's Exhibits B [sic] is an email sent from Cleo Thomas to Ken Smith on December 14, 2011, which was copied to Plaintiff Ben Little and to Defendants Robinson and Palmore. Plaintiff's Exhibit F is an email sent from Cleo Thomas to Don Hoyt on December 14, 2011 and was copied to the Plaintiff and to Defendants Palmore and Robinson. Plaintiff's Exhibit K is an email that was sent from Don Hoyt to Plaintiff and Defendants Palmore and Robinson on December 16, 2011. These exhibits were readily available to the Defendant, and the Plaintiff was substantially justified in producing them in response to Defendant's Motion for Summary Judgment.
(Doc. 21 at 2) (italics and underlining in original). The Plaintiff cites no authority, and this Court has found none, for the proposition that a party is justified in failing to produce or identify a document in Rule 26(a) merely because that document was already in the possession of an opposing party.
Nor does the above argument demonstrate lack of prejudice. In making this argument, the Plaintiff confuses the Defendants' knowledge that the documents exist with their knowledge that the documents may be used to support a claim of the Plaintiff. The fact that the Defendants possessed the documents imputes knowledge of the former, but not necessarily the latter. The purpose of requiring the Plaintiff to at least identify these documents as part of his initial disclosures is to avoid surprise and minimize prejudice. Cash v. State Farm Fire & Cas. Co., 125 F. Supp. 2d 474,477 (M.D. Ala. 2000) (citing Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir.1994); Smith v. Massachusetts Institute of Technology, 877 F.2d 1106, 1111 (1st Cir.1989)); King v. City of Waycross, Georgia, No. CV 5:14-CV-32, 2015 WL 5468646, at *3 (S.D. Ga. Sept. 17, 2015). The Plaintiff's failure to identify and produce these documents, even if they were in the possession of the Defendants, runs afoul of this purpose. If they had been produced or identified, the Defendants would have had the opportunity for further investigation, preparation, and discovery with regards to the Plaintiff's anticipated use of these documents. The Plaintiff has failed to show how the failure to identify or produce these documents, even if they were in the possession of the Defendants, did not prejudice them.7 The motion to strike will be granted as to exhibits B, F, and K.
The Plaintiff next argues:
With respect to Exhibit J the Defendant claims that Ken Smith was never disclosed in Plain...
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